Erler v. Erler: Enforcement of Form I-864, Affidavit of Support, Obligations

Affidavit of Support Help CenterA wealthy real estate agent must pay to support his immigrant ex-wife per his Form I-864, Affidavit of Support, even though she is now living with and being supported by her adult son. That’s the ruling of the U.S. Court of Appeals for the Ninth Circuit in Erler v. Erler, 2016 U.S. App. LEXIS 10361 (9th Cir. June 8, 2016).

As background, U.S. citizen Yashar Erler married Turkish citizen Ayla Erler in 2009. To help her obtain permanent resident status, Yashar filed with the Government the required Form I-864, Affidavit of Support, promising to support her. The couple also signed a prenuptial agreement that neither would owe alimony in the event of a divorce.

The marriage soon crumbled. Ayla moved in with her adult son, who pays rent and living expenses for the both of them. After the divorce, Ayla sued Yashar in federal court, claiming that he owed her money under the affidavit of support.

Yashar argued that the prenuptial agreement foreclosed alimony, but the Ninth Circuit quickly dispatched that argument, reasoning that the affidavit of support’s obligations do not end with divorce and are separate from any alimony obligations.

More interesting is the question of how to calculate Ayla’s household size for purposes of determining her household income and, hence, the amount of support Yashar must pay. The affidavit of support itself is silent on how to calculate household size. It merely says the sponsor must

Provide the intending immigrant any support necessary to maintain him or her at an income that is at least 125 percent of the Federal Poverty Guidelines for his or her household size.

The statute and regulations provide no clarification on how to calculate household size, according to the Court. The statute actually omits reference to the household size, saying that the sponsor must “maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty line.” INA 213A(a)(1)(A).

The district court had held that the adult son counts as part of Ayla’s household. But the Ninth Circuit reversed the district court’s ruling. The Ninth Circuit holds that the Ayla’s household size is just her. The Court reasoned that counting others as part of the sponsored immigrant’s new household could be problematic:

  • In this situation, where the household member provides support, that lets the sponsor off the hook. It would be a “windfall” to the sponsor. Such a ruling could even encourage some sponsors to hold out on support payments waiting for “charitable third parties to pick up the slack.” And
  • In other situations, if the sponsored immigrant’s new household has multiple household members without income, it would be unfair to make the sponsor support the entire household.

The Court recognizes that in a sense Ayla has received a windfall–more support than she requires. “However, while the immigrant may receive more support than required, the sponsor pays no more than what he or she should have expected.”

Somewhere in Chicago, Judge Richard Posner of the Seventh Circuit Court of Appeals may have smiled at this ruling. When he presided over an affidavit of support-related case, he wrote that

The last thing federal courts need is to be dragged into domestic-relations disputes.

Liu v. Mund, 686 F.3d 418 (7th Cir. 2012). The Ninth Circuit’s bright-line rule reduces the federal courts’ work. These cases becomes less complex because this rule makes it irrelevant whom the sponsored immigrant resides with and what their income is.

Still, the Ninth Circuit’s ruling isn’t unassailable. It conveniently ignores the wording of the affidavit and the statute, which both require support at a level defined by the federal poverty guidelines (FPG), which depends on household size. For 2016, in all states except Alaska and Hawaii, 125% of the FPG is $14,850 for a household size of 1 and $20,025 for a household size of 2). It remains to be seen whether the other federal appellate courts will follow the Ninth Circuit on this point.

Finally, in a footnote, the Ninth Circuit explicitly left open the question of how to count the sponsored immigrant’s household size if she remarries. “In such a case, it may be appropriate to impute all or part of the spouse’s income to the sponsored immigrant.”

For more, see our firm’s Help Center: Form I-864, Affidavit of Support.

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